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Monday, 19 July 2010

Film-makers' rights: another ECJ reference

Earlier today this weblog reported on another copyright dispute in which a question has been referred to the Court of Justice of the European Union for a preliminary ruling -- the question relating to payments for public lending right. Now, courtesy of the UK's Intellectual Property Office, here's news of another reference, this time from Austria in C-277/10 Luksan v Petrus van der Let (not yet available on the Curia website). The questions asked are as follows:

"1. Must the provisions of European Union law concerning copyright and related rights, and in particular Article 2(2), (5) and (6) of Directive 92/100, Article 1(5) of Directive 93/83 and Article 2( 1) of Directive 93/98, in conjunction with Article 4 of Directive 92/100, Article 2 of Directive 93/83 and Articles 2 and 3 and Article 5(2)(b) of Directive 2001/29, be interpreted as meaning that the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are directly (primarily) entitled in all events, by law, to the exploitation rights in respect of reproduction, satellite broadcasting and other communication to the public through the making available to the public and that the film-maker is not entitled thereto directly (primarily) and exclusively;

Are laws of the Member States which assign the exploitation rights by law directly (primarily) and exclusively to the film-maker inconsistent with European Union law?

If the answer to Question 1 is in the affirmative:

2a. Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the filmmaker of the exploitation rights within the meaning of paragraph 1 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, even in respect of rights other than rental and lending rights, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied?

2b. Must the primary ownership of rights of the principal director of a cinematographic or audiovisual work, or of other authors of films designated by the legislature of a Member State also be applied to the rights granted by the legislature of a Member State to equitable remuneration, such as 'empty cassette remuneration' pursuant to Paragraph 42b of the Austrian Urhebergesetz (Copyright law, 'UrhG'), or to rights to fair compensation within the meaning of Article 5(2)(b) of Directive 2001/29?

If the answer to Question 2b is in the affirmative:

3. Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the filmmaker of the rights to remuneration within the meaning of paragraph 2 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, III conjunction with Article 4 of that directive, be satisfied?

If the answer to Question 3 is in the affirmative:

4. If a legal provision of a Member State accords to the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States a right to half of the statutory rights to remuneration, but provides that that right is capable of alteration and not therefore unwaivable, is that provision consistent with the aforementioned provisions of European Union law in the area of copyright and related rights?"

If you would like to comment on this case please email the IPO here before this Friday, 23 July 2010.

If any reader has any background information concerning this reference and the underlying dispute, we'd be delighted to hear of it.

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